Howth v. Farrar

• Decision Date: 26 January 1938
• Docket Number: No. 8545.,8545.
• Citation: 94 F.2d 654
• Parties: HOWTH v. FARRAR et al.
• Court: U.S. Court of Appeals — Fifth Circuit

94 F.2d 654 (1938)

HOWTH v. FARRAR et al.^*

No. 8545.

Circuit Court of Appeals, Fifth Circuit.

January 26, 1938.

Wm. Andress, Jr., of Dallas, Tex., for appellant.

Wm. E. Allen, of Fort Worth, Tex., for appellees contra.

Before HUTCHESON and HOLMES, Circuit Judges, and STRUM, District Judge.

HUTCHESON, Circuit Judge.

The suit was in trespass to try title in statutory form, for 640 acres of land in Erath county, Texas. The chain of title under which plaintiff claimed the land sued for was: (1) A patent to William E. Howth, dated January 9, 1847. (2) The last will and testament of W. E. Howth, dated May 27, 1855, admitted to probate April 30, 1860 in Austin county, Texas, devising the tract to the eldest son of W. E. Howth for life, and upon his death to his eldest living son. (3) Certified copy of a certificate of the death of William E. Howth, Jr., July 31, 1930.

All the numerous defendants filed a common answer and cross-action, in which the particular part of the survey each owned and the particular improvements each had placed on it, were set out, and as to each defendant there was a plea of not guilty, and the following special defenses.

(1) That item 2 of the will¹ on which plaintiff relies was and is wholly void, invalid, and inoperative under the constitutional prohibition against perpetuities; (2) that the property described in the will was not identified with the land sued for; (3) that each of the defendants had limitation title to the tract he owned and claimed, under the 3, 5, 10, and 25 years' statutes of limitations of the state of Texas; (4) a plea of purchase in good faith and for value without notice of plaintiff's claim under the will, that it had not been recorded nor had any notice thereof been had until long after the predecessors in title of the respective defendants had in good faith for value without notice, acquired title.

The case was tried to the court upon a jury waiver. Plaintiff proved the patenting of the land to his ancestor, the making of the will and its probate, and the filing of the will in the deed records of Erath county August 20, 1889. He proved that there were two Wm. E. Howth surveys in Erath county, and that for a great many years the will of Wm. E. Howth had been included in every abstract made to the land; that there was also included in it an affidavit made in 1912 as to the Howth heirship. The following facts were stipulated:

That William E. Howth, the original patentee to the land, died in Austin county, Texas, in 1859, leaving surviving him his widow, Mary Ann Howth, who died intestate in 1887, five children, Ophelia Ann, born in 1842, still living, William Edward, born in 1845, died July 31, 1930, Edwin Simpson, born in 1849, died about 1915, Mary Ann, born in 1851, died about 1903, and Emma, born in 1853 still living, and no descendants of deceased children. William Edward Howth, Jr., was the eldest son, of William E. Howth, the patentee. At the time of his death, July 31, 1930, he was survived by his widow, who has since died, and by five children, the oldest of whom is the plaintiff in this suit. Erath county was created on January 25, 1856, out of lands theretofore situated and contained in Bosque and Coryell counties. Coryell county was created in 1854 out of lands theretofore situated and contained in McLennan and Bell counties. Bosque county was created in 1854 out of lands theretofore situated in McLennan county. McLennan county was created in 1850 out of lands theretofore situated in Milam and Navarro counties. On May 1, 1877, a deed to their right, title, and interest in the land in controversy was executed and delivered to W. E. Howth, Jr., by his brothers and sisters, all the surviving children of William E. Howth, Sr.² During the years 1878 to 1882 William E. Howth, Jr., from time to time and in parcels sold and conveyed to remote grantors of the defendants the survey claimed by plaintiff in this suit. The respective defendants herein have and hold regular and complete chains of title to the lands claimed by them from such remote grantors.

Defendants, as to the tract each owned, proved open, notorious, hostile and adverse possession of the lands under claim of title and with valuable improvements made thereon, for thirty to forty years.

The land passed out of W. E. Howth, Jr., by the following deeds: To J. P. Hardin, on March 6, 1879, conveying 160 acres "to him, his heirs, executors, administrators and assigns, in fee simple absolute." Deed, June 21, 1878, for 180 acres, to "McClesky, his heirs and assigns forever." Deed, January 11, 1879, to Evan Jones for 60 acres. This deed provides: "To have and to hold the same unto the said Evan Jones, his heirs and assigns, forever. And I, the said W. E. Howth, for myself and my heirs, do hereby covenant and agree to and with the said Evan Jones that I am now the owner of the said premises, and I am seized of a good and indefeasible estate of inheritance therein, and that I have full right and power to sell the same, that the said Evan Jones, his heirs and assigns, may forever hereafter have, hold, possess and enjoy the same without any molestation or interruption by any person whatsoever lawfully claiming the same or any part thereof." Deed August 7, 1879, to Morton, conveying 50 acres "to him, his heirs and assigns, forever." Deed to G. W. Jones, February 14, 1882, conveying 80 acres "to him, his heirs and assigns, forever."

The District Judge thought the will valid. He could not see in it any violation of the rule against perpetuities. He thought, however, that defendants and those under whom they claim were innocent purchasers of the land for value without notice of plaintiff's claim, because the will was probated in Austin county, and was not recorded in Erath county until long after title had emanated from the sole heirs of Howth, who, but for the will would have been the owners of the land. He found for defendants for all the land in controversy on their plea of innocent purchase. Though he expressed himself as inclined to think the pleas of limitation, especially that of 25 years, good, he did not decide those issues.

Appealing from it, appellant insists that the judgment against him was wrong; that it should have been for him. Appellees, on their part, insist that the judgment was right, not alone for the reasons the District Judge gave, but for all the reasons they advanced below.

We have examined all of these reasons; we find some of them well taken, some not. We agree with the District Judge that the will did not violate the rule against perpetuities, that it created a valid remainder in plaintiff. We agree with him, too, that the description in the will, taken in connection with the other evidence, is quite sufficient to identify it with, and confer upon plaintiff as devisee, a valid remainder in the land in controversy. This leaves for consideration only the two other defenses: (1) Of innocent purchase; (2) of limitation.

As to innocent purchase, appellant insists that there is no proof that anything of value was paid; no proof that defendants' predecessors in title bought the property without knowledge of plaintiff's claim, and finally, that the probate of the will being a proceeding in rem, of which all persons are charged with knowledge, and the will having been filed as required by articles 8299 (7873) and 8300 (7874), Rev.Civil Stats. of Texas,³ defendants, deriving their title, as they do, through W. E. Howth, Sr., are in law charged with knowledge of the will and its probate, and cannot claim as innocent purchasers from his heirs.

Appellees urge upon us that while the recording statutes speak of other instruments and muniments of title than wills, and do not in terms require, for notice, that a will be recorded in the deed records, the probate of a will is a judgment by which the title is recovered, within the statute, article 6638, Rev.Stats. of Texas, requiring "every partition * * * and every judgment or decree by which the title to land is recovered" to be recorded as a prerequisite to their admission in evidence, Haines v. West, 101 Tex. 226, 105 S.W. 1118, 130 Am.St.Rep. 839.

They argue, too, that the Texas decisions have definitely held that foreign wills must be recorded to give notice, Slayton v. Singleton, 72 Tex. 209, 9 S.W. 876; they have also held that to serve notice, proceedings in administration and administrator's deeds must be filed for record, Thompson v. Rust, 32 Tex.Civ.App. 441, 74 S.W.924; and that title held under a domestic will is, in principle, held the same way.

Appellant, answering these contentions, points out: That the statute for the recording of judgments relates to partitions and other judgments in suits between persons; it does not deal with judgments in rem, as probate proceedings are; that there are statutes, articles 8301 to 8303, Rev.Stats. of Texas, limited to foreign wills, placing them on the footing and requiring them to be recorded as deeds are, Slayton v. Singleton, supra; Lane v. Miller & Vidor Lumber Co., Tex.Civ.App., 176 S.W. 100; and that it is definitely settled by the Texas decisions that domestic wills are properly and effectively filed for notice when recorded in the probate records of the county where the will is probated, and though they may be, they do not have to be, recorded as deeds are. Belcher Land Mortgage Co. v. Clark, Tex.Civ.App., 238 S.W. 685; Lynch v. Baxter, 4 Tex. 431, 51 Am.Dec. 735; Glover v. Coit, 36 Tex.Civ.App. 104, 81 S.W. 136; Perdue v. Perdue, Tex.Civ. App., 208 S.W. 353, 357; Hardin v. Hardin, Tex.Civ.App., 66 S.W.2d 362.

We think that appellant has the right of it on this issue. The will was not a foreign, but a domestic will. It was duly probated in the state of Texas in accordance with the laws of that state. It was duly filed in accordance with those laws. The order admitting it to probate was not a judgment in partition, or one for recovery of title within the statute affecting...